Critical Legal Thought - L6173

Professor Katherine Franke
Spring 2008
Mondays & Wednesdays 1:10-2:30
Room JG 103

The concepts "public law" and "private law," as well the notions of "canon," "field" and "foundational curriculum," all rest on a set of unstated premises for their integrity. Certain legal concepts, forms of reasoning, and values are privileged, while others are marginalized and devalued, if not ignored. Critical Legal Thought will introduce second-semester, first-year law students to a range of critical approaches to law with the goal of giving them tools for testing legal arguments, assertions of legal pedigree, and the underlying normative premises that often make certain legal outcomes seem just, if not inevitable. Further, the constitutive courses of the first-year curriculum will be critically examined.

The first weeks of the semester will examine the underlying structure of "regular law," including the work done by legal positivists, and formalists. From there we will cover critical approaches to the assertion of law’s objectivity and rationality. Beginning with Legal Realism and it’s progeny Critical Legal Studies, readings will cover Feminist and Critical Race critiques of law’s aspiration to objectivity and neutrality. We will then move to examine the foundational curriculum - Torts, Contracts, Criminal Law, Property, and Civil Procedure.

Rather than one final examination at the end of the semester, students will write two papers of approximately ten pages each in which they will be expected to articulate their own critical evaluations of the material covered. The papers will be due on March 14^th and April 30^th. Questions on which you will write will be distributed one week in advance.

Professor Franke's Coordinates:

Office: Room 627
Office Hours: Tuesdays 10:00-12:00, or by appointment
Phone: 854-0061
E-Mail: kfranke@law.columbia.edu
Professor Franke's Assistant: Manissa Maharawal, 854-2511, mmahar@law.columbia.edu

Syllabus

DeShaney v. Winnebago County

As you read the DeShaney case I want you to be thinking about the following questions:
 

Is this a hard case?  If so, what makes it so?

What role should sympathy play in the project of finding a just result?  How does the sympathy that a judge might use to inform his or her decision-making relate to the fiction of the "reasonable person"?

Shouldn't legal reasoning be characterized by objectivity, neutrality, predictability and determinacy?  If so, how can sympathy and emotion figure in legal adjudication?

Is finding a just result necessarily the same thing as finding whether or not the plaintiff has a right under the Constitution in this case?  That is to say, is there some daylight between the concept of law and the concept of justice?

What does Justice Blackmun mean when he accuses the majority of the Court of "sterile formalism"?

Should law have a grounding in morality?  Is this what Justice Blackmun means when says that law should have a moral ambition on p. 1012?

Law's Relation to Morality 1.16

• Lord Patrick Devlin, The Enforcement of Morals (1965)
• H.L.A. Hart, "Immorality and Treason," The Listener (1959)
• Excerpt from Jacobellis v. State of Ohio
• Excerpt from Bowers v. Hardwick
• Excerpt from Lawrence v. Texas

Reading Questions:

• When you say: "It is the law that X" - what does putting "It is the law that" in front of X add to the proposition?  Does it, and if so how does it, give you additional reasons for doing X?  How do those who ground the nature of law in morality answer this question?
• How does a natural law approach to legal rules help answer the question: "why ought one obey the law?"
• For natural law theorists, what does it mean for something to be an immoral law?  Or an unjust law?
• What is the relationship between moral validity and legal validity?
• What is the relation of law to morality in the excerpt from Bowers v. Hardwick?
• How does the Supreme Court's approach change in Lawrence v. Texas?  How does Justice Kennedy affect that change?

January 21 - No Class Martin Luther King Day

• Summary of John Austin’s Legal Positivism
• H.L.A. Hart, The Concept of Law (1961)
• Riggs v. Palmer, 22 N.E. 188 (NY 1889)

Reading Questions:

• How well does Austin's "command theory" of law describe a legal system such as ours in the U.S.?
• How does Hart frame the weaknesses of Austin's command theory of law?
• Is Hart's concept of law best characterized as an analytic theory of law (a theory in the abstract that offers a generalizable account of what law is in a top down fashion) or as a kind of descriptive sociology (a theory of law the is more bottom up in the sense that offers a coherent description of the social facts of law and would speak to existing and varied social phenomena, accommodate social realities, and ‘fit the facts’)?
• Does the court in Riggs v. Palmer apply the law to the facts in a manner that accords with Hart's account of law?
• Is Riggs hard or easy case for Hart?\

Reading for TA sessions on January 24th and 25th here

• Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in Scalia, A Matter of Interpretation (1997)
• David Sosa, The Unintentional Fallacy, 86 Cal. L.Rev. 919 (1998)
• Alison D. v. Virginia M., 572 N.E.2d 27 (N.Y. 1991)

Oliver Wendell Holmes and the Roots of Legal Realism 1.30

Oliver Wendell Holmes, Book Review, 14 Am. L. Rev. 234 (1880)

Oliver Wendell Holmes, The Path of the Law (1897)

Lochner v. New York (1905) (Holmes, J., dissenting)

The Legal Realists 2.4

Karl N. Llewellyn, A Realistic Jurisprudence—The Next Step, 30 Colum. L. Rev. 431 (1930)

Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935)

David B. Wilkins, Legal Realism for Lawyers, 104 Harv. L.Rev. 468 (1990)

Reading Questions:

• Holmes wrote that "general propositions cannot decide concrete cases" - how do the realists take this insight further than did Holmes?
• How do the Legal Realists formulate and then defend the idea that legal rules are radically indeterminate?
• How would you formulate a "realist's" skepticism about the value of any general or abstract theory of law?
• Are they able to avoid the slippery slope to an "anything goes" theory of adjudication?
• If the realists reject rules as a fundamental value in legal reasoning, what do they substitute in their place?  That is, what do they value?
• Wilkins discusses the challenges of realist insights to the problem of legal ethics.  How does realism similarly pose problems for legal education?

The Return of Rules and the Morality of Law - Ronald Dworkin 2.6

• Ronald Dworkin, The Model of Rules
• Ronald Dworkin, Hard Cases

Reading Questions:

• What are Dworkin's critiques of Hart's brand of positivism?  Are they convincing?
• What does the concept of "principles" for Dworkin add to a conception of laws based on rules?
• How does/can Dworkin avoid the charge that judicial exercise of discretion is, in fact, merely policy-making, better left to a legislature?  Particularly when resolving "hard cases"?
• How does Dworkin bring morality back into the business of law?
• How does Dworkin account for the normativity of law, that is, how making something a legal rule gives us additional reasons for following it?  Do you find his approach convincing?
• What does he mean by Justice as Fairness?

• Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984)
• Derrick A Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L.Rev. 518 (1980)

• Paul Carrington, Of Law and the River, 34 J. Legal. Educ. 222 (1984)
• Robert W. Gordon, Letter to Paul Carrington, 35 J. Legal Educ. 1 (1985)
• Richard Michael Fischl, The Question That Killed Critical Legal Studies, 17 L. & Soc. Inq. 779 (1992)

No Class Monday, February 18th

• Martha Fineman, Gender and Law: Feminist Legal Theory's Role in the New Legal Realism, 2005 Wisc.L. Rev. 405
• Holly Maguigan, Battered Women and Self Defense: Myths and Misconceptions in Current Reform Proposals, 140 Pa.L.Rev. 379 (1991)

• Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence
• Patricia Williams, On Being The Object of Property

• Derrick Bell, Racial Realism
• Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations

Richard T. Ford, Beyond "Difference": A Reluctant Critique of Legal Identity Politics

Kimberle Crenshaw, Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color

REVIEW FOR FIRST PAPER 3.5

FIRST PAPER TOPIC DISTRIBUTED 3.7 (Due 3.14) paper question here

• Paul D. Carrington, Hail! Langdell!, 20 Law & Soc. Inquiry 691 (1995)
• Laura Kalman, To Hell with Langdell! 20 Law & Soc. Inquiry 771 (1995)

• Duncan Kennedy, The Political Significance of the Structure of the Law School Curriculum, 14 Seton Hall L. Rev. 1 (1984)
• Angela P. Harris & Marjorie M. Shultz, "A(nother) Critique of Pure Reason": Toward Civic Virtue in Legal Education, 45 Stan. L. Rev. 1773 (1993)

• Trial Record of Palsgraf v. Long Island Railway Co.
• John T. Noonan, Persons and Masks of the Law (2002 ed.) chapter 4
• Richard A. Posner, Cardozo: A Study in Reputation (1990) chapter 3

• Margaret Jane Radin, Compensation and Commensurability, 43 Duke L.J. 56 (1993)
• Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. Chi. L. Rev. 537 (2005)

• Martha Chamallas & Linda Kerber, Women, Mothers and the Law of Frights: A History, 88 Mich.L.Rev. 814 (1990)
• Barbara Welke, Women and the Embodiment of Product Liability, 1870-1930

• Jay M. Feinman, Promissory Estoppel and Judicial Method, 97 Harv. L. Rev. 678 (1984)

• Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 Am Soc. Rev. 55 (1963)
• Sally Falk Moore, Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study, 7 Law & Soc. Rev. 719 (1973)

• Robert Cover, Violence and the Word, 95 Yale L.J. 1601 (1986)

• Shoshana Felman, Forms of Judicial Blindness, or the Evidence of What Cannot Be Seen: Traumatic Narratives and Legal Repetitions in the O.J. Simpson Case and in Tolstoy's The Kreutzer Sonata, in The Juridical Unconscious: Trials and Traumas in the Twentieth Century (2002)

• George Washington’s Last Will and Testament www.pbs.org/georgewashington/milestones/free_slaves_read.html
• Letter from Abigail Adams to Mrs. Richard Cranch, Dec. 21, 1800 (handwritten and typed)
  Alice Curtis Desmond, Martha Washington: Our First Lady pp. 297-98 (1943)
• Cheryl Harris, Whiteness as Property, 106 Harv.L.Rev. 1709 (1993)

• Carol M. Rose, Given-ness and Gift: Property and The Quest for Environmental Ethics, 24 Envtl. L. 1 (1994)
• Lee P. Breckenridge, Can Fish Own Water? Envisioning Nonhuman Property in Ecosystems, 20 J. Land Use & Envtl. L. 293 (2005)

• Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 Colum. L. Rev. 773 (2001)
• Patricia J. Williams, The Pain of Word Bondage, in The Alchemy of Race and Rights (1991)

SECOND PAPER TOPIC DISTRIBUTED 4.23 (Due 4.30) paper question here